A three-judge federal appeals court panel on Tuesday sharply questioned the Trump administration's attempted use of a little-known piece of federal immigration law to deport pro-Palestinian activist Mahmoud Khalil.
Politico reported that the judges on the Philadelphia-based 3rd Circuit Court of Appeals panel heard arguments from government attorneys seeking to overturn a lower court order releasing Khalil from detention in Louisiana.
Khalil, who is a legal permanent resident of the United States, is married to an American citizen.
The trio reportedly included Judge Thomas Hardiman, who was appointed by former President George W. Bush; Judge Stephanos Bibas, who was appointed by President Donald Trump; and Judge Arianna Freeman, who was appointed by former President Joe Biden.
According to the outlet, Bibas seemed especially skeptical of the government's argument that the lower court judge did not have jurisdiction over the case because Khalil's lawyers had filed a petition for his release in the wrong district.
Following his arrest on March 8, Khalil was moved multiple times over the course of a weekend, and his lawyers filed the petition in Manhattan based on information that the government provided.
Drew Ensign, the government's attorney, suggested that Khalil's lawyers should not have filed the petition so quickly.
"They're dealing with a situation where, you know, immigrants have been spirited out of the country in a matter of a day or two," Bibas said to Ensign. "Are they acting unreasonably?"
Ensign began to answer, but Bibas reportedly interjected, saying, "I'm asking, should we adopt a rule that allows the executive to remove someone from the country in 24 to 48 hours and say there's no jurisdiction anywhere until the courts open on Monday, by which time he's on a plane?
"If our rule says, wait until … the system is updated Monday morning, the executive might spirit the person out of the country over the weekend," Bibas continued. "Are you asking us to adopt a rule that says when there's a lag in the database that's all on their lawyers and then Monday morning — 'Sayonara, sorry, he's gone?' "
Khalil was detained in Louisiana for more than three months earlier this year after he was arrested under a rarely invoked provision of immigration law that permits the deportation of a noncitizen if the secretary of state deems the individual's continued presence a threat to U.S. foreign policy.
During Tuesday's hearing, Khalil's lawyers argued that the lower-court judge, Michael Farbiarz, had correctly prevented the Trump administration from applying the foreign-policy immigration provision.
"Why shouldn't the government have the power to remove people from the country that are harmful to the country?" Hardiman asked, according to Politico.
"I think the answer is, it has many means to do so, but it can't be based on lawful, protected speech, political — particularly core political — speech," Bobby Hodgson, a lawyer for Khalil, said. "And I think to find otherwise, and to find that Mr. Khalil cannot make out a First Amendment claim."
The judge then asked if the argument would be the same if it was about "material support for terrorism."
"I think that is a different analysis, and reasonably so," Hodgson said. "I think this is the exceptional case where it is about core political speech."
A Louisiana-based immigration judge ruled last month that Khalil could be deported, but the case is reportedly being reviewed by a separate appeals panel.
Nicole Weatherholtz ✉
Nicole Weatherholtz, a Newsmax general assignment reporter covers news, politics, and culture. She is a National Newspaper Association award-winning journalist.
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